1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION 11 12 ROCCO CARMEN C.,1 ) Case No. EDCV 20-00991-AS 13 ) Plaintiff, ) MEMORANDUM OPINION 14 ) v. ) 15 ) ANDREW SAUL, Commissioner ) 16 of the Social Security ) Administration, ) 17 ) Defendant. ) 18 ) 19 For the reasons discussed below, IT IS HEREBY ORDERED that, 20 pursuant to Sentence Four of

(g), the Commissioner’s 21 decision is affirmed. 22 23 24 25 26 27 1 Plaintiff’s name is partially redacted in accordance with 28 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 PROCEEDINGS 2 3 On May 8, 2020, Rocco Carmen C. (“Plaintiff”) filed a Complaint 4 seeking review of the denial of his applications for Disability 5 Insurance Benefits and Supplemental Security Income by the Social 6 Security Administration. (Dkt. No. 1). The parties have consented to 7 proceed before the undersigned United States Magistrate Judge. (Dkt. 8 Nos. 11-12). On November 25, 2020, Defendant filed an Answer along with 9 the Administrative Record (“AR”). (Dkt. Nos. 17-18). On February 10, 10 2021, the parties filed a Joint Stipulation (“Joint Stip.”) setting 11 forth their respective positions regarding Plaintiff’s claim. (Dkt. No. 12 19). 13 14 The Court has taken this matter under submission without oral 15 argument. See C.D. Cal. L.R. 7-15. 16 17 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISIONS 18 19 Plaintiff, formerly employed as a caregiver and in motel management 20 (see AR 172-75, 353, 363-73), filed applications for Disability 21 Insurance Benefits and Supplemental Security Income on September 6, 2016 22 and January 10, 2017, respectively, alleging a disability since 23 September 6, 2016. (See AR 85, 331-37). Plaintiff’s applications were 24 denied, initially on June 14, 2017, and on reconsideration on September 25 20, 2017. (See AR 224, 255-56). 26 27 On January 16, 2019, Plaintiff, represented by counsel, testified 28 at a hearing before Administrative Law Judge (“ALJ”) Barry Robinson. (See AR 167-87). The ALJ also heard testimony from vocational expert 1 (“VE”) Joyce Brumbaugh. (See AR 187-90). On April 15, 2019, the ALJ 2 issued a decision denying Plaintiff’s requests for benefits. (See AR 3 85-96). 4 5 Applying the five-step sequential process, the ALJ found at step 6 one that Plaintiff had not engaged in substantial gainful activity since 7 September 6, 2016, the alleged onset disability onset date. (AR 87). 8 At step two, the ALJ determined that Plaintiff had the following severe 9 impairments: “attention deficit hyperactivity disorder sequela status 10 post ventral hernia repair, osteoarthritis involving multiple joints; 11 plantar fasciitis bilaterally, [and] posttraumatic arthritis of the 12 right leg.” (AR 87-88). At step three, the ALJ determined that 13 Plaintiff did not have an impairment or combination of impairments that 14 met or medically equaled the severity of any of the listed impairments 15 in the regulations. (AR 88-90).2 16 17 The ALJ then assessed Plaintiff’s residual functional capacity 18 (“RFC”)3 and found that Plaintiff could perform light work4 with the 19 following limitations: “can only frequently climb ramps and stairs”; 20 “limited to only occasionally climbing ladders, ropes and scaffolds”; 21 “can frequently balance, stoop, kneel, crouch, and crawl”; and “is able 22 23 2 The ALJ specifically considered Listings 1.02 (major 24 dysfunction of a joint(s)), 1.04 (disorders of the spine), and 12.02 (neurocognitive disorders). (AR 88-90). 25 3 A Residual Functional Capacity is what a claimant can still do 26 despite existing exertional and nonexertional limitations. See

(a)(1), 416.945(a)(1). 27 4 “Light work involves lifting no more than 20 pounds at a time 28 with frequent lifting or carrying of objects weighing up to 10 pounds.”

(b), 416.967(b). 1 to perform simple, unskilled work.” (AR 90-94). At step four, the ALJ 2 found that Plaintiff did not have any past relevant work. (AR 94). At 3 step five, the ALJ determined, based on Plaintiff’s age, education, work 4 experience, RFC, and the VE’s testimony, that there were jobs existing 5 in significant numbers in the national economy that Plaintiff could 6 perform. (AR 94-95). Accordingly, the ALJ found that Plaintiff had not 7 been under a disability, as defined in the Social Security Act, from 8 September 6, 2016 though April 15, 2019. (AR 95). 9 10 The Appeals Council denied Plaintiff’s request for review on April 11 2, 2020. (AR 1-6). Plaintiff now seeks judicial review of the ALJ’s 12 decision, which stands as the final decision of the Commissioner. See 13

(g), 1383(c). 14 15 STANDARD OF REVIEW 16 17 This Court reviews the Commissioner’s decision to determine if it 18 is free of legal error and supported by substantial evidence. See 19 Brewes v. Comm’r,

(9th Cir. 2012). “Substantial 20 evidence” is more than a mere scintilla, but less than a preponderance. 21 Garrison v. Colvin,

(9th Cir. 2014). “It means such 22 relevant evidence as a reasonable mind might accept as adequate to 23 support a conclusion.” Revels v. Berryhill,

(9th Cir. 24 2017). To determine whether substantial evidence supports a finding, 25 “a court must consider the record as a whole, weighing both evidence 26 that supports and evidence that detracts from the [Commissioner’s] 27 conclusion.” Aukland v. Massanari,

(9th Cir. 28 1 2001)(internal quotation omitted). As a result, “[i]f the evidence can 2 support either affirming or reversing the ALJ’s conclusion, [a court] 3 may not substitute [its] judgment for that of the ALJ.” Robbins v. Soc. 4 Sec. Admin.,

(9th Cir. 2006).5 5 6 7 PLAINTIFF’S CONTENTION 8 9 Plaintiff contends that the ALJ erred in failing to properly 10 consider the opinion of an examining physician (Dr. Khoury). (See Joint 11 Stip. at 4-8, 10). 12 13 DISCUSSION 14 15 After consideration of the record as a whole, the Court finds that 16 the Commissioner’s findings are supported by substantial evidence and 17 are free from legal error. 18 19 A. The ALJ Properly Assessed the Opinion of Examining Physician, Dr. Khoury 20 21 Plaintiff asserts that the ALJ failed to properly reject Dr. 22 Khoury’s opinion of Plaintiff’s ability to stand and walk. (See Joint 23 Stip. at 4-8, 10). Defendant asserts that the ALJ properly evaluated 24 Dr. Khoury’s opinion. (See Joint Stip. at 8-10). 25 26 5 The harmless error rule applies to the review of 27 administrative decisions regarding disability. See McLeod v. Astrue,

(9th Cir. 2011); Burch v. Barnhart,

, 28 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors that are harmless). 1 An ALJ must take into account all medical opinions of record. 20

(b), 416.927(b).6 The regulations differentiate 3 between three types of physicians’ opinions: “(1) those who treat the 4 claimant (treating physicians); (2) those who examine but do not treat 5 the claimant (examining physicians); and (3) those who neither examine 6 nor treat the claimant (nonexamining physicians).” Lester v. Chater, 7

(9th Cir. 1995). “Generally, a treating physician’s 8 opinion carries more weight than an examining physician’s, and an 9 examining physician’s opinion carries more weight than a reviewing 10 physician’s.” Holohan v. Massanari,

(9th Cir. 11 2001); see also Lester,

. 12

13 If an examining or treating doctor’s opinion is not contradicted 14 by another doctor, the ALJ can reject the opinion only for “clear and 15 convincing reasons.” Carmickle v. Commissioner,

, 1164 16 (9th Cir 2008); Lester,

. If the examining or treating 17 doctor’s opinion is contradicted by another doctor, the ALJ must provide 18 “specific and legitimate reasons” that are supported by substantial 19 evidence in the record for rejecting the opinion. Orn v. Astrue, 495

, 632 (9th Cir. 2007); Reddick v. Chater,

(9th 21 Cir. 1998); Lester,

. “The ALJ can meet this burden by 22 23 6 Since Plaintiff filed his applications before March 27, 2017, 24

and 416.927 apply. For an application filed on or after March 27, 2017,

.1520c and 416.920c would apply. 25

.1520c and 416.920c changed how the Social Security Administration considers medical opinions and prior administrative 26 medical findings, eliminated the use of the term “treating source,” and eliminated deference to treating source medical opinions. See 20 C.F.R. 27 §§ 404.1520c(a), 416.920c(a); L.R. v. Saul,

, at *3 n. 5 (C.D. Cal. Jan. 17, 2020); Golightly v. Saul,

, at *6 n. 28 5 (D. S.C. April 7, 2020); see also

, at 5852 (January 18, 2017);

, at 62573-74 (Sept. 9, 2016). 1 setting out a detailed and thorough summary of the facts and conflicting 2 clinical evidence, stating his interpretation thereof, and making 3 findings.” Trevizo v. Berryhill,

(9th Cir. 4 2017)(citation omitted). Finally, an ALJ may reject an opinion of any 5 physician that is conclusory, brief, and unsupported by clinical 6 findings. Bayliss v. Barnhart,

(9th Cir. 2015); 7 Thomas v. Barnhart,

(9th Cir. 2002); Tonapetyan v. 8 Halter,

(9th Cir. 2001). 9 10 Farjalla Nassim Khoury, M.D., a Board Certified Medicine and 11 Rehabilitation physician, completed a report following a comprehensive 12 orthopedic examination of Plaintiff on April 23, 2017. (See AR 456-60). 13 Plaintiff complained of chronic pain in the hands, knees, right leg and 14 bilateral feet –- “[t]he pain is constant, throbbing, averages 5/10, and 15 is worse with weightbearing and cold weather.” (AR 456). After making 16 physical examination findings (see AR 457-59), Dr. Khoury diagnosed 17 Plaintiff with “[o]steoarthrosis, involving multiple joints,” “[p]lantar 18 fasciitis, bilaterally,” and “[p]osttraumatic arthritis, right leg in 19 the setting of prior fracture when the claimant was a teenager.” (AR 20 459). Dr. Khoury opined that Plaintiff had the following limitations: 21 a maximum standing and walking capacity of “up to four hours in an 8- 22 hour workday secondary to the claimant’s bilateral plantar fasciitis”; 23 a maximum lifting/carrying/pushing/pulling capacity of “20 pounds 24 occasionally and 10 pounds frequently, secondary to the claimant’s 25 osteoarthritis and chronic pain involving multiple joints”; and 26 occasional “climbing, balancing, stooping, kneeling, crouching, and/or 27 crawling secondary to the claimant’s osteoarthritis and chronic pain 28 involving multiple joints.” (AR 459). Dr. Khoury also opined that 1 Plaintiff did not have any limitations or restrictions with respect to 2 maximum sitting capacity, assistive devices, manipulative activities and 3 workplace environmental activities. (AR 459-60). 4 5 The ALJ gave “great weight” to most of Dr. Khoury’s opinions, but 6 gave “less weight” to Dr. Khoury’s opinion about Plaintiff’s standing 7 and walking limitation because it was inconsistent with evidence that 8 Plaintiff had normal gait and motor strength during subsequent 9 treatment sessions. (AR 92-93). 10 11 Since Dr. Khoury’s opinion that Plaintiff can walk and stand up to 12 4 hours in an 8-hour workday was contradicted by the May 10, 2017 13 opinion of G. Spellman, M.D., a state agency medical examiner, that 14 Plaintiff had the functional capacity to stand and/or walk about 6 hours 15 in an 8-hour workday (AR 218),7 the “specific and legitimate” standard 16 applies to the ALJ’s rejection of Dr. Khoury’s opinion about Plaintiff’s 17 ability to walk and stand in an 8-hour workday. See Trevizo,

. 19 20 Here, the ALJ properly gave less weight to Dr. Khoury’s opinion 21 that Plaintiff could walk and stand up to 4 hours in an 8-hour workday 22 because it was not consistent with the medical record as a whole. See 23

(d)(4) (“Generally, the more consistent a medical 24 opinion is with the record as a whole, the more weight we will give to 25 that medical opinion.”), 416.927(c)(4) (same). As the ALJ noted (see 26 27 28 7 The ALJ gave “great weight” to Dr. Spellman’s opinion. (AR 93). 8 1 AR 93), Dr. Khoury’s opinion about Plaintiff’s walking and standing 2 limitations was inconsistent with the record of Plaintiff’s physical 3 examinations and test results. See AR 458-59 (Dr. Khoury’s physical 4 examination on April 23, 2017 shows normal gait and muscle strength), 5 465 (no impairment in gait observed during mental evaluation on May 27, 6 2017), 518-519 (August 21, 2017 X-rays of Plaintiff’s feet reflect “[n]o 7 significant abnormality”), and 548, 148, 132 (physical examinations on 8 October 10, 2018, October 16, 2018 and November 27, 2018 show normal 9 gait and station and normal muscle strength). Thus, the ALJ provided 10 a specific and legitimate reason for rejecting Dr. Khoury’s opinion 11 about Plaintiff’s abilities to stand and walk. 12 13 Contrary to Plaintiff’s assertion (see Joint Stip. at 7), the ALJ’s 14 finding that Plaintiff had the severe impairment of plantar fasciitis 15 bilaterally does not necessarily warrant a finding of corresponding 16 limitations in the RFC determination. See Bray v. Comm’r,

(9th Cir. 2009)(“Bray offers no authority to support the 18 proposition that a severe mental impairment must correspond to a 19 limitations on a claimant’s ability to perform basic activities”). As 20 Defendant points out, the ALJ’s RFC determination limited Plaintiff to 21 a restricted range of light work, thereby incorporating Plaintiff’s 22 standing/walking limitations. See Social Security Ruling 83-10. 23 24 // 25 // 26 // 27 28 9 1 ORDER 2 3 For the foregoing reasons, the decision of the Commissioner is 4 AFFIRMED. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 DATED: July 7, 2021. 9 /s/ ALKA SAGAR 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10